ML20087P407
| ML20087P407 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 04/04/1984 |
| From: | Churchill B METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| 83-491-04-OLA, 83-491-4-OLA, OLA, NUDOCS 8404060402 | |
| Download: ML20087P407 (7) | |
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UNITED STATES OF AMERICA "
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METROPOLITAN EDISON COMPANY, ET AL. )
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Docket No. 50-289-OLA (Three Mile Island Nuclear
)
ASLBP 83-491-04-OLA Station, Unit No. 1)
)
(Steam Generator Repair)
)
LICENSEE'S MOTION FOR LEAVE TO FILE REPLY TO JOINT INTERVENORS' RESPONSE TO LICENSEE'S MOTION FOR
SUMMARY
DISPOSITION Licensee hereby moves the Atomic Safety and Licensing Board, pursuant to 10 C.F.R.
S 2.730, for leave to file the ac-companying Reply to Joint Intervenors' March 20, 1984 Response to Licensee's Motion for Summary Disposition.1/
As we explain in greater detail below, Licensee should be permitted to file such a reply because Joint Intervenors have wrongfully and un-fairly predicated their opposition on new facts and allegations which should have been, but were not, provided to Licensee in response to discovery requests.
Joint Intervenors have also 1/
Licensee's reply has been combined with its Answer to Joint Intervenors' March 20, 1984 Motion to Stay the Hearing.
8404060402 840404 PDR ADOCK 05000289 0
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failed to comply with the requirements of 10 C.F.R.
$ 2.749, 1
raised issues which are outside the scope of the contentions 1
and of the hearing, and mischaracterized Licensee's amendment application and summary disposition motion.
During the discovery period, Licensee propounded two sets of interrogatories and document production requests to Joint Intervenors in order to ascertain the full scope and specific nature of their allegations.
Joint Intervenors' answers to the discovery requests articulated a number of allegations as the bases for their contentions.
Armed with this understanding of Joint Intervenors' concerns, Licensee moved for summary dispo-sition of their contentions on February 24, 1984.
Licensee addressed each contention in depth, and in particular, addresed each of the facts and allegations which had been identified in the intervenors' discovery responses.
In so doing, Licensee j
demonstrated that these facts and assertions raise no genuine issue as to any fact material to Joint Intervenors' conten-tions.
i Joint Intervenors' March 20, 1984, response to Licensee's summary disposition motion necessitates a reply because Joint Intervenors there raise a completely different set of allega-tions which were never alluded to, much less explained, in their responses to Licensee's discovery requests.
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r notwithstanding that Licensee's discovery requests un-questionably sought identification of the allegations Joint In-tervenors now make,2/ and of the documents upon which they now rely.3/
2/
For example, Joint Intervenors now assert for the first time that copper may function akin to a synergist.
See Joint Intervenors' Response, at 3.
Yet in Licensee's first discovery request, Interrogatory 1(5)-14 (December 15, 1983) requested that Joint Intervenors identify "each and every synergistic ef-fect which you allege was not, but should have been, considered i
and explain the cause of the chemical agents involved in each 4
such effect."
In Licensee's second discovery request, Inter-rogatory II-1(5) 12(a) (January 24, 1984) further requested that Joint Intervenors identify."each and every synergist which 1
is likely to have an effect on the oxidation and reduction pro-cesses, and/or the synergistic effect which is likely to occur during reactor operation.
Licensee's discovery requests also addressed all of the other issues raised by Joint Interve-nors in their contentions and during the prehearing conference, including the effects of morphological changes, and potential stress cracking agents other than-sulfur.
3/
Licensee's discovery requests instructed Joint Intervenors to identify each and every document which (1) they claim sup-1 ports their answers and allegations, (2) which they plan to use as an exhibit, and (3) which they planned to use for purposes of cross-examination.
- Sae, e.g.,
Licensee's Interrogatories 1(3)-5(December 15, 1983); II-1(3)-10, II-1(3)-11 (January 24, 1984).
However, Joint Intervenors failed to identify during the course of discovery the documents upon which they now rely
(" Examination of Tube Samples 21-46 and 28-45 from the Ginna Nuclear Power Plant for Intergranular Attack," EPRI NP-2877, (February 1983); " Evaluation of Steam Generator Tubes R7C45 and R21C46 from the Ginna Nuclear Power Plant," EPRI NP-3070-LD, (May 1983); " Stress Corrosion Cracking of Alloy 600," EPRI NP-2114-SR, (November 1981); J.V.'Monter and G.J.
Theus, "TMI OTSG Corrosion Test Program-Final Report," B&W Report, (May 9, 1983);
J.C. Griess and J.H. DeVan, " Behavior of Inconel-600 in Sulfer-Contaminated Boric Acid Solutions," ORNL/TM-8544, (March 1983)).
All of these documents were sent to Joint-Intervenors as part of Licensee's response to Joint Intervenors' discovery requests on January 31,.1984.
Thus, Joint Intervenors had-these documents in their possession for nearly a month before (Continued Next'Page) i
i Fundamental fairness requires that Licensee be permitted an opportunity to respond to the new allegations prior to the Board's determination of Licensee's summary disposition motion.
This result is required as well to safeguard the integrity of the Commission's rules, which contemplate the use of the summa-ry disposition procedures as an efficacious means of avoiding unnecessary hearings.
As Licensee's accompanying reply demon-strates, despite their reliance on new information, Joint In-tervenors have raised no genuine issue as to any material fact.
Licensee should be permitted to demonstrate this conclusion at this time, rather than unnecessarily having to do so in a lengthy evidentiary hearing.
Additional irregularities in Joint Intervenors' response equally demand a reply.
Foremost among these, Joint Interve-nors seek to thwart summary disposition by raising issues which are outside the scope of the admitted contentions, and indeed, are outside the scope of the hearing.
They also have "sup-ported" their opposition only with quotations from various re-ports taken out of context, or mischaracterizations of (Continued) 1 responding to Licensee's supplemental interrogatories on February 27, 1984, yet did not identify these documente until they filed their response to Licensee's motion for summary dis-position on March 20, 1984.
i Licensee's prior pleadings, and thus have failed to satisfy 10 C.F.R.
$ 2.749's requirement that they support their opposition with a statement of facts and affidavits or similar admissible evidence.
Id. at $ 2.749(a), (b).
The regulations make clear that unless a properly supported opposition is filed, summary disposition "shall be rendered."
Id. at $ 2.749(b).
Licensee ought to have the opportunity to demonstrate this is the case as well.
WHEREFORE, Licensee respectfully requests that its motion be granted and that Licensee be permitted to reply to Joint In-tervenors' Response to Licensee's Motion for Summary Disposi-tion.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE
{L A5 I$
nu Odorge F.
Trowbridge, P.C.
Bruce W. Churchill, P.C.
Diane E. Burkley Wilbert Washington, II Counsel for Licensee 1800 M Streat, N.W.
Washington, D.C.
20036 (202) 822-1000 Dated:
April 4, 1984
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i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
METROPOLITAN EDISON COMPANY, ET AL.)
Docket No. 50-289-OLA
)
ASLBP 83-491-04-OLA (Three Mile Island Nuclear Station,)
(Steam Generator Repair)
Unit No. 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Motion for Leave to File Reply to Joint Intervenors' Response to Licens-ee's Motion for Summary Disposition", dated April 4, 1984, were served upon those persons on the attached Service List, by de-posit in the United States mail, postage prepaid, this 4th day of April, 1984.
l v%4 Q_
Diane E. Burkley
i f
4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
METROPOLITAN EDISON COMPANY, ET AL. )
Docket No. 50-289-OLA
)
ASLBP 83-491-04-OLA (Three Mile Island Nuclear
)
(Steam Generator Repair)
Station, Unit No. 1)
)
SERVICE LIST Sheldon J. Wolfe Atomic Safety and Licensing Administrative Judge Board Panel Chairman, Atomic Safety and U.S. Nuclear Regulatory Commission Licensing Board Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Docketing and Service Section (3)
Washington, D.C.
20555 office of the Secretary U.S. Nuclear Regulatory Commission Dr. David L. Hetrick Washington, D.C.
20555 Administrative Judge Atomic Safety and Licensing Board Joanne Doroshow, Esq.
Professor of Nuclear Engineering Louise Bradford University of Arizona Three Mile Island Alert, Inc.
Tucson, Arizona 85271 315 Peffer Street Harrisburg, Pennsylvania 17102 Dr. James C. Lamb, III Administrative Judge Jane Lee Atomic Safety and Licensing Board 183 valley Road 313 Woodhaven Road Etters, Pennsylvania 17313 Chapel Hill, North Carolina 27514 Norman Aamodt Richard J. Rawson, Esq.
R. D.
5, Box 428 Mary E. Wagner, Esq.
Coatesville, Pennsylvania
'.9320 Office of Executive Legal Director U.S. Nuclear-Regulatory Commission Washington, D.C.
20555 Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 F
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